1 Kan. 328 | Kan. | 1863
By the Court,
The only points relied on are errors of the court below in overruling exceptions to the depositions of Todd and Scudder. The notice given was to take depositions on the 9th day of December, 1861, and “that the taking of said depositions will be adjourned from day to day between the same hours and at the same place if necessary, till completed.”
The depositions were taken on the 16th day of December, 1861. The certificate of the officer taking the deposition, stating that at the time and place stated in the notice, “ the said plaintiff appeared by his attorney, and thereupon the taking of said depositions was adjourned from day to day, the plaintiff making appearance as aforesaid till the 16th day of December, 1861,” at which time the depositions were taken. No cause is given for the continuance for seven days. Both depositions were taken on one day. The notice was to take on .the 9th, and the taking was only to be continued “if necessary,” and no such necessity is shown.
It must be made clearly to appear affirmatively to the court that depositions are taken at the time designated in the notice ; otherwise great injustice may be done by not even offering the adverse party an opportunity of cross-examination, and when for any cause a continuance under a proper notice is had, the reason of such continuance should appear, in order that the sufficiency of such reason may be judged of by the court; otherwise the taking of depositions may be continued from day to day, to wear out the patience of the adverse party, and deprive him of the benefit of cross-examination, or what may be quite as important, to be present and see to the manner of proceeding by the party, the officer and the witness.
In this case, for aught that appears, the continuance was without cause, and the time when the depositions were taken
It is said by defendant in error that these exceptions were taken too late, as the depositions had once been read in the trial before the justice of the peace. The code provides that exceptions shall be made before the trial, and fixes no other time; and they were made before the trial, and the plaintiffs in error had a right to the opinion of the district court as to the sufficiency of the notice, and we think the exceptions to the depositions should have been sustained for the. reasons given. This conclusion renders it unnecessary to consider the other exceptions to the depositions.
Wherefore the judgment of the district court is reversed, and the cause remanded to the district court for Leavenworth county for a new trial.
